Dispute Resolution Chamber
Texto da decisão
REF 20-01858
Decision of the
DRC Judge
passed on 16 June 2021
regarding an employment-related dispute concerning the player Cristian Portilla
Rodriguez
BY:
Alexandra Gómez Bruinewoud (Netherlands) / (Uruguay), DRC Judge
CLAIMANT:
Cristian Portilla Rodriguez, Spain
Represented by Mr Oriol Castañer Folch and Ms Teodora Taneva
RESPONDENT:
Aris FC, Greece
Represented by Ms Chrissa Sevastopoulou
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I.
FACTS OF THE CASE
1.
On 25 September 2019, Member of the FIFA Disciplinary Committee rendered a decision
involving the Spanish player, Cristian Portilla Rodriguez (hereinafter: the Respondent or
Player) and the Greek club, Aris FC (hereinafter: the Respondent or Club), by means of
which the club was found guilty of failing to comply with the decision passed by the Dispute
Resolution Chamber on 23 January 2013, according to which it was ordered to pay to the
player, within 30 days, a total amount of EUR 369,500 plus interest.
2.
On 26 July 2020, the parties concluded a settlement agreement (hereinafter: the
Agreement), by means of which “the Parties hereby agree to settle the FIFA Decision and
the FIFA Disciplinary Committee proceedings (…)”.
3.
According to clause 2 of the agreement, the club undertook to pay to the player the
following amounts:
“EUR 300,000 (three hundred thousand) within three calendar days after signature of this
agreement. Such payment to be understood as complied by the Club if within 72 hours
after signature of this agreement presents the Player with evidence of payment of the above
amount providing the relevant bank transfer order to the Bank Account in Spain (…);
EUR 25,000 (twenty-five thousand Euro) net on or before 30 October 2020;
EUR 25,000 (twenty-five thousand Euro) net on or before 30 November 2020.
All payments indicated in this contract are to be considered as “net” of taxes.”
4.
Pursuant clause 5 of the agreement, “It is also expressly agreed that if the Club fails to pay
the second or the third of the aforementioned payments by the agreed date, the remaining
unpaid amount would become immediately outstanding and due and the Player will be
entitled to file a claim before the FIFA judicial body in order to enforce the full outstanding
amounts (the unpaid instalment and the remaining instalments) stated in this Agreement
as overdue payables under Art. 12bis of the FIFA Regulations on the Status and Transfer of
Players, plus an amount of 50,000 euros net that is expressly agreed by the parties as a fair
and reasonable penalty for the failure of the club.”
5.
On 25 October 2020, the club requested the player to reschedule the payment of the
second and third instalment amounting to EUR 50,000.
6.
On the same date, the player rejected the club’s proposal for the payment of the second
and third instalments (note: email on file).
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7.
On 3 December 2020, the player sent an email to the club stating the following (note: email
on file):
“I am contacting you after instructions of my client, Cristian Portilla Rodriguez, with regard
the above mentioned matter and my correspondence dated 2nd November 2020.
At this respect our client wishes to remind that on 1st November 2020 the club was put in
default of the first & second instalments and penalty in accordance with Article 5 of the
Settlement Agreement.
To this date our client has received the instalments but the contractual penalty remains
unpaid.
Considering the above, Mr. Portilla requests you to make payment of the above mentioned
penalty in the next 10 days. (…)”.
II.
PROCEEDINGS BEFORE FIFA
8.
On 18 December 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
The claim of the Claimant
9.
On 18 December 2020, the Claimant lodged a claim against the Respondent in front of
FIFA, claiming, inter alia, the amount of EUR 50,000 net plus 5% interest p.a. as from 30
October 2020.
10.
In his claim, the Claimant explained that until the decision of the FIFA Disciplinary
Committee of 25 September 2019, he had not been able to collect the amount of EUR
69,500 as pending remuneration for more than seven years, plus 5% annual interest from
19 January 2012, as well as the amount of EUR 300,000 as compensation.
11.
The Claimant added that, however, he decided with good will and understanding for the
Respondent to agree on a payment plan with a reduction in the amounts determined by
the FIFA Disciplinary Committee.
12.
The Claimant further explained that said penalty has been established in the agreement as
a guarantee for him in the event that the Respondent breaches its obligation, and thus, not
be harmed once again and without being able to collect the amount established in the
agreement.
b.
13.
Position of the Respondent
In its reply to the claim, the Respondent stated that “On 6 November 2020, Aris FC
contacted the Claimant and informed him that the payment of the second instalment would
be made on 9 November 2020, that is, with less than ten days delay, and pointed out that
despite the content of the Claimant’s email of 2 November 2020, Aris FC was hoping that
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the Claimant would refrain from asking the payment of the penalty provided in article 5 of
the Settlement Agreement.”
14.
The Respondent maintained that on 9 November 2020, “Aris FC informed the Claimant of
the payment made and provided the relevant swift and expressed its hope that, given the
fact that there were only a few days delay of payment, the Claimant would not proceed
with claiming the agreed penalty of 50,000 euros” and that the Claimant did not reply to
its email.
15.
According to the Respondent, on 30 November 2020, it proceeded with the payment of
the third instalment to the Claimant, covering the total amount of EUR 350,000 and
therefore fully complied with the agreement, and stated that said payment is not contested
by the Claimant.
16.
The Respondent held that on 6 December 2020 it replied to the Claimant’s email of 3
December 2020, explaining that “it considered that the claim of the penalty by the Claimant
was made in an abusive way, since the Claimant had left the club to reasonably believe that
the Claimant had accepted that following the payment of the October instalment with only
few days delay and the November instalment of the agreement on time, no penalty should
be paid.”
17.
The Respondent rejected the Claimant’s claim and stated that “the settlement agreement
provided that in case of failure of Aris FC to pay the second or the third instalment of the
agreement, the whole remaining amount would become immediately due and the Claimant
would be entitled to file a claim before FIFA to enforce the payment of the outstanding
amounts and in such case a penalty of 50,000 euros would also be payable. However, the
Claimant did not use the option granted by article 5 of the settlement agreement of 26 July
2020 and thus, the provided therein penalty is not applicable.”
18.
The Respondent maintained that “the agreed penalty was not meant to be payable in case
of a small delay of payment, but only in case of failure to pay that would oblige the Claimant
to file a claim before FIFA in order to achieve the payment of the outstanding instalment(s).”
19.
Furthermore, the Respondent stated that “it is the Respondent’s position that since the
Claimant did not request the penalty between the payment of the October instalment on 9
November 2019 and the payment of the November instalment on the 30th of November,
the Claimant has de facto waived any right to claim such penalty, even if it were payable
according to the agreement, quod non, and thus, his claim shall be dismissed as contrary
to the good faith expected by all parties, abusive and groundless.”
20.
Finally, the Respondent requested that “in the unexpected event that the FIFA DRC decides
that the claimed penalty is payable and that the claim is not abusive, Aris FC respectfully
requests FIFA to rule that the said claimed penalty of article 5 of the agreement of 26 July
2020 is disproportionate and to bring it down to the appropriate level (i.e., half of the
amount at maximum), by taking into consideration i.) that the 6/7 of the agreed amount of
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the settlement had already been paid in one instalment in July 2020, ii) that the payment
of the second instalment delayed only 9 days, as well as the fact that such a delay occurred
during a Covid-19 lockdown that had created enormous problems to the clubs (Aris FC’s
income had actually decrease 65%) and iii) that the third instalment of the agreement had
been paid on time without any delay.”
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
21.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as DRC
Judge) analysed whether she was competent to deal with the case at hand. In this respect,
it took note that the present matter was presented to FIFA on 18 December 2020 and
submitted for decision on 16 June 2021. Taking into account the wording of art. 21 of the
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
22.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit.
a) and b) of the Regulations on the Status and Transfer of Players (edition February 2021),
the Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Spanish player and a Greek club.
23.
Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (edition February 2021), and
considering that the present claim was lodged on 18 December 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
24.
The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the DRC judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which she may consider
evidence not filed by the parties.
25.
In this respect, the DRC judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
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pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
26.
Merits of the dispute
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the merits of the dispute. In this respect, the DRC judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
27.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether or not a penalty in the
amount of EUR 50,000 fell due to the Claimant, because of the alleged late payment of
several instalments as per a settlement agreement.
28.
In this context, the Chamber acknowledged that it its task was to determine whether or
not the parties had agreed upon a valid penalty clause in the settlement agreement, and
whether or not said penalty clause was triggered.
29.
After having reviewed the documentation on file, the DRC judge concluded that penalty
clauses may be freely entered into by the contractual parties and may be considered
acceptable, in the event that the pertinent written clause meets certain criteria such as
proportionality and reasonableness. In this respect, the DRC judge highlighted that in order
to determine as to whether a penalty clause is to be considered acceptable, the specific
circumstances of the relevant case brought before it shall also be taken into consideration.
30.
In the specific case at hand, the DRC judge deemed that the penalty fee of EUR 50,000,
corresponding 13.5% of the total outstanding amount of EUR 369,000, plus interest, which
was due already since, which the parties contractually agreed upon in the context of
terminating the employment relation, is both proportionate and reasonable in the case at
hand.
ii. Consequences
31.
Having stated the above, the DRC judge turned her attention to the question of the
consequences of such unjustified breach of settlement agreement committed by the
Respondent.
32.
Consequently, the DRC judge decided that in accordance with the general legal principle
of pacta sunt servanda, the Respondent is liable to pay to the Claimant a penalty in the
amount EUR 50,000.
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33.
In addition, the DRC judge decided – in line with the Chamber’s well-established
jurisprudence - to reject the Claimant’s request for interest to be awarded on said penalty,
as this would be considered a double penalty.
iii. Compliance with monetary decisions
34.
Finally, taking into account the consideration under number 36. above, the DRC judge
referred to par. 1 lit. and 2 of art. 24bis of the Regulations, which stipulate that, with her
decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from
the failure of the concerned party to pay the relevant amounts of outstanding remuneration
and/or compensation in due time.
35.
In this regard, the DRC judge highlighted that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
36.
Therefore, bearing in mind the above, the DRC judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
37.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
38.
The DRC judge recalled that the above-mentioned ban will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24bis
par. 8 of the Regulations.
d.
Costs
39.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
40.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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41.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Cristian Portilla Rodriguez, is partially accepted.
2.
The Respondent, Aris FC, has to pay to the Claimant EUR 50,000.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant
bank account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank
details to the Respondent, the following consequences shall arise:
1.
2.
7.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be lifted
immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
In the event that the payable amount as per in this decision is still not paid by the end of the
ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
This decision is rendered without costs.
For the Dispute Resolution Chamber (DRC) judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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